"That
the passage of said ordinance was procured by undue influence
of the said water company in that J. H. McIlroy, the
president thereof, unduly influenced J. H. Atha, a member of
the council, to vote therefor by making him believe that the
legal effect of the instrument prepared would be to only
require the city to pay at the stated periods at which it
could purchase, the actual value of its physical property, if
it desired to purchase, and induced him to believe that the
pressure was greater than required under the old ordinance
when in fact the city could not purchase at such prices, and
when said pressure was, in effect, less than required under
the old ordinance.
"That
he induced W. W. Chapman to vote therefor by making him
believe that under the new ordinance the pressure would be
guarantied at the University greater under the new ordinance
than was required by the old ordinance.
"That
he induced C. W. Phillips, a member of the council, to vote
for said ordinance by inducing him to believe that the
opposition to it on the part of many citizens was on account
of revenge, and that he induced each and every member of the
council who voted for it to believe that under this ordinance
which they passed the water company guarantied to the city a
greater pressure and the power to raise water to a greater
elevation at the University than was required of the company
under the old ordinance.
"That
it is not true that under the new ordinance a greater
pressure was guarantied at the University than under the old.
By the terms of this new ordinance a stream was required to
be raised 65 feet at some point south of the University on
Dickson Street to be selected by the council, while in fact
the highest point on Dickson Street south of the University
was 56 feet lower than the lowest point of the basement of
the University building, which fact was unknown to the
members of the council and the required pressure would only
require the water to be raised nine feet above the lowest
point of the foundation of the building.
"That
the said J. H. McIlroy, president of the water company,
devoted the most of his time from the time the ordinance was
introduced before the council in August until the final
passage of ordinance 137 on the 9th day of November in
preparing the ordinance so as to protect the interests of the
water company, and in persuading the individual members of
the council to vote for it.
"That
each and every one of the members of the council who voted
for said ordinance was induced to believe that the legal
effect of the said ordinance number 135 was that the city
could purchase, at the expiration of the periods named, the
water plant by paying simply for the physical property a fair
and reasonable value, and, had it not been that they so
believed, none of the said members would have voted for the
same.
"That
none of said councilmen were lawyers or versed in matters of
this character. That the president of the water company, with
the aid of his counsel, wrote out the report of the chairman
of the committee having in charge the consideration of said
ordinance, and wrote out all of the amendments that he and
his counsel prepared, and shaped the language of each and
every one of said amendments. That the said chairman, W. W.
Chapman, received the same from the hands of the president of
the water company on Friday, the 23d day of October, 1903.
That he received at the same time said ordinance 135, which
had been prepared by the water company and his counsel.
"That
on Monday night, October 26, said W. W. Chapman and C. W.
Phillips signed the report so prepared by the president of
the water company and his counsel, the other members of the
committee refusing to sign the same.
"That,
through the influence of the president of the water company
and his representations aforesaid and divers other
representations, a majority of the council, believing the
same, were induced to vote for said ordinance, and to pass
the same by putting it upon its third reading the same night
it was introduced; that the same had never been submitted to
Hon. R. J. Wilson, attorney for the city, and he had no
opportunity to examine into the report or the ordinance so
amended, and that no citizen, outside of the council, had any
knowledge or information that there would be an attempt to
pass this ordinance at this time, and no one had an
opportunity to point out and call attention to the council to
the objectionable features of the ordinance so passed.
"That
the ordinance passed is void for the following reasons:
"First:
Because it was procured by the undue influence aforesaid, and
was passed without the members of the council voting therefor
understanding the legal effect thereof, and the same is a
fraud on the rights of plaintiffs and other taxpayers.
"Second:
Said ordinance is void for the reason that it seeks to fasten
upon the city a bonded indebtedness as the only means by
which it can be relieved of this ordinance when the city has
no legal right to issue or create a bonded indebtedness.
"Third:
Said ordinance is void because it seeks to make the city
liable for interest-bearing indebtedness.
"Fourth:
Said ordinance is void because it is unreasonable in this:
"(a)
It is an attempt to grant to the water company an exclusive
franchise for an unreasonable length of time, towit: 20
years.
"(b)
It seeks to bind the city for the payment of hydrant rental
at a fixed price for an unreasonable length of time.
"(c)
It gives no assurance to the city to furnish a necessary or
sufficient amount of water for domestic and manufacturing
purposes and fire protection.
"(d)
It gives no assurance of any definite pressure in case of
fire.
"(e)
The city council had, prior to the passage of this act,
granted to an electric light company a twenty-five year
franchise by which it had agreed to pay certain sums
annually, and, after having paid said sums, there is not
sufficient revenue from the taxation of all said city
property to the constitutional limit of five-mills to pay the
amount that is contracted for under this ordinance for
hydrant rental; and if all of the revenue of the city should
be used for that purpose, there would be an annual deficit
during the continuance of this franchise.
"(f)
It makes an arrangement for the payment of five cents per
thousand gallons for water for sewers, when the city is
absolutely deprived of means to pay for same.
"(g)
It provides no penalty whatever for a failure on the part of
the water company to comply with any of its undertakings.
"(h)
By section nineteen of said ordinance it is attempted to
provide a special rate of ten cents per thousand gallons to
manufacturing industries that use an average of 10,000
gallons per day that use hydrant exclusively, which in effect
is oppressive, aimed at subdivision of a class and by its
terms is exclusive of two or three industries within the city
limits.
"(i)
It is unreasonable in that it approximates a minimum rate to
water consumers.
"(j)
It is unreasonable in that the rates so fixed are
ex-orbitant.
"(k)
It is unreasonable in that it makes it impossible for the
city under its terms to require the water company to make any
future extensions.
"Fifth:
Said ordinance is void because it is contrary to the
Constitution, the laws and policy of the State.
"(a)
It attempts to bind the city to pay a bonded indebtedness
when under the Constitution and laws of the State it has no
power to issue bonds.
"(b)
It attempts to bind the city to pay interest on indebtedness
when the Constitution and laws of the State forbid the same.
"(c)
It attempts to fix the hydrant rental for a long and
unreasonable length of time, which hydrant rentals amount to
more than the amount derived from the legal assessment of all
the property within the city limits.
"(d)
It attempts to delegate the legislative functions of the
council to a board of arbitration for the purpose of
determining the terms and conditions upon which the charter
may be continued.
"(e)
It imposes conditions for future extensions which are
unreasonable and can not be complied with in order to obtain
the same.
"(f)
It imposes the condition of allowing the water company to
mortgage its property for an additional sum of $ 1,250 for
each hydrant that might be added under order of the council,
the effect of which would be to prevent the council ordering
fire hydrants where they are necessary, and is contrary to
public policy.
"(g)
It creates a monopoly contrary to public policy.
"(h)
And in divers other respects it is contrary to the
Constitution and statute laws of the State.
"Sixth:
Said ordinance is void for uncertainty in the following and
other respects:
"(a)
The various terms employed in sections 7-17 and 21 leave it
indefinite and uncertain as to what pressure is required from
the water company.
"(b)
It is impossible to determine from the language of section 7
whether the "altitude shall have the capacity' for
supplying a population of 15,000, whether the reservoir, the
mains, the plant or what it is that shall have a capacity.
"(c)
It is impossible to determine from ...
